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Extraneous Misconduct Admissibility, § 904.04 – Pornographic Images — “Greater Latitude” Rule, Applicable to Sexual Assault of Vulnerable Adult

State v. Timothy J. Normington, 2008 WI App 8, PFR filed 12/21/07
For Normington: Stephen J. Eisenberg

Issue: Whether images downloaded from the defendant’s computer, depicting objects inserted into women’s vaginas and into men’s and women’s anuses, were admissible on a charge of sexual assault of a mentally deficient victim involving an object inserted in his anus.


¶19      We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography, not prior sexual assaults, if the adult victim functions at the level of a child due to disabilities. We also conclude the court properly exercised its discretion in applying the rule in this case. [5] Thus, in analyzing the circuit court’s decision we will bear in mind that the application of the rule permits a more liberal admission of other crimes evidence, while also recognizing that the rule does not relieve a court of the duty to ensure that the other acts evidence is admissible under the proper legal standards. See id. at 52.…

¶21      … The first step requires only that the other acts evidence be offered for a permissible purpose. We conclude the circuit court reasonably concluded that the State satisfied this requirement by identifying the permissible purpose of motive and explaining that the State wanted to show that Normington was motivated by his sexual interest in inserting objects into body orifices when he inserted the toilet plunger into Bob’s anus.

¶22      We turn next to the second step, which requires an inquiry into the relevance of the pornography evidence. …

¶24      Because inserting a toilet plunger into another person’s anus is an unusual thing to do, knowing why a person might be motivated to do such a thing is highly significant to deciding whether Normington did it.  A reasonable inference from the evidence that Normington viewed pornography showing the insertion of objects into a person’s anus is that he found that practice sexually arousing.  A reasonable judge could conclude that this inference makes it more probable that Normington would insert an object into Bob’s anus than if there were no evidence he had a sexual interest in the insertion of objects into a person’s anus.

The court also concludes that the evidence wasn’t unfairly prejudicial: “having a sexual interest in the pornography is less, not more, disturbing than inserting a toilet plunger into a mentally deficient person’s anus,” ¶35; Normington was offered but declined a standard cautionary JI, ¶36; the State’s argumentation properly limited the inferential purposes, ¶37; and, Normington was acquitted on two of four counts, which “demonstrates that the jury did not decide to find Normington guilty simply because of the pornography he viewed,” ¶38.


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